Free Lunch

Clement had barely finished his first sentence when Kagan immediately asked him why it was coercive for the federal government to give billions of dollars in additional aid to the states. “There are no matching funds requirements, there are no extraneous conditions attached to it, it’s just a boatload of federal money for you to take and spend on poor people’s healthcare,” she declared. “It doesn’t sound coercive to me, I have to tell you.”

To that, Clement said the government’s money was still coercive because it assumed the states would take the money and that Congress was leveraging their prior participation in the program. Kagan pressed further with a hypothetical asking Clement if he’d accept a lucrative job. He said it would depend on where that money came from.

“Wow! Wow!” Kagan exclaimed in wonderment. “I’m offering you $10 million a year to come work for me and you are saying this is anything but a great choice?” Clement sharply replied, “Sure, if I told you, actually it came from my own bank account.”